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United States v. State

United States District Court, W.D. Washington

April 24, 2018

UNITED STATES OF AMERICA, et al., Plaintiffs,
v.
STATE OF WASHINGTON, et al., Defendants.

         Sub-proceeding, 17-sp-02

          ORDER GRANTING MOTIONS TO DISMISS

          RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This matter comes before the Court on the Swinomish Indian Tribal Community's, Port Gamble and Jamestown S'Klallam Tribes', and Tulalip Tribe's Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1) (Dkt. #25), and the Suquamish Indian Tribe's Motion to Dismiss (Dkt. #27), in which the Squaxin Island Tribe and the Puyallup Tribe of Indians have also joined (Dkts. #28 and #29) (hereinafter collectively the “Moving Tribes”). The Muckleshoot Tribe opposes the motion (Dkt. #31), and the Nisqually Indian Tribe has joined in that opposition (Dkt. #33). The Moving Tribes assert that this Court lacks jurisdiction to hear this matter under Paragraph 25(a)(6) of the Order Modifying Paragraph 25 of the Permanent Injunction, entered on August 24, 1993, because the Muckleshoot Tribe's marine usual and accustomed fishing grounds and stations (“U&A”) has already been specifically determined, and because the Muckleshoot asserted a contrary position to that advanced now in a prior subproceeding in which it succeeded. Dkts. #25, #27, #28 and #29. The Muckleshoot oppose the motion on the basis that the marine U&A asserted now has never been determined. Dkt. #31. The Nisqually, while not joining any substantive claims to the U&A, concurs with the procedural arguments made by the Muckleshoot with respect to its ability to invoke Paragraph 26(a)(6) jurisdiction. Dkt. #33. For the reasons discussed herein, the Court agrees with the Moving Tribes, and hereby DISMISSES this subproceeding.

         I. BACKGROUND

         This case arises from a Request For Determination (“RFD”) brought by the Muckleshoot Indian Tribe, in which it seeks a determination that the Tribe's U&A under the Treaties of Point Elliott and Medicine Creek includes additional locations in the saltwater of Puget Sound not determined in earlier proceedings in this action. Dkt. #3. The Muckleshoot invoke jurisdiction under Paragraph 25(a)(6) of the Order Modifying Paragraph 25 of Permanent Injunction, entered in this action on August 24, 1993, which provides in relevant part that a party “may invoke the continuing jurisdiction of this court in order to determine . . . [t] he location of any of a tribe's usual and accustomed fishing grounds not specifically determined by Final Decision #1. Dkt. #3 at 2.

         In 1970 the United States, as trustee for all the treaty tribes, filed suit in the Western District of Washington to obtain an interpretation of the Treaty of Point Elliott and an injunction protecting treaty fishing rights from interference by Washington State. In 1974, Judge Boldt issued extensive findings of fact, conclusions of law, and a permanent injunction. United States v. Washington, 384 F.Supp. 312 (W.D. Wash. 1974) (“Boldt Decree”). The Boldt Decree defined the Treaty of Point Elliott's reference to “usual and accustomed grounds and stations” as meaning “every fishing location where members of a tribe customarily fished from time to time at and before treaty times, however distant from the then usual habitat of the tribe, and whether or not other tribes then also fished in the same waters[.]” Id. at 332.

         The U&A of the Muckleshoot was described by Judge Boldt in Findings of Fact (“FF”) 76 his decision:

Prior to and during treaty times, the Indian ancestors of the present day Muckleshoot Indians had usual and accustomed fishing places primarily at locations on the upper Puyallup, the Carbon, Stuck, White, Green, Cedar and Black Rivers, the tributaries to these rivers (including Soos Creek, Burns Creek and Newaukum Creek) and Lake Washington, and secondarily in the saltwater of Puget Sound. Villages and weir sites were often located together. [FPTO § 3-53; Ex. USA-20, p. 38; Ex. USA 27b, pp. 7-16; Ex. PL-23, pp. 11-12.]

384 F.Supp. at 312, 367 (W.D. Wash. 1974), FF 76 (“Decision I).

         On January 11, 1997, the Puyallup Tribe sought a determination that the Muckleshoot had “no adjudicated usual and accustomed fishing grounds and stations in marine waters outside Elliot Bay.” Case No. 97-sp-00001RSM (originally brought before Judge Barbara Rothstein), Dkt. #1 at ¶ 1. The Puyallup sought to “bar any fisheries by the Muckleshoot Tribe in the waters surrounding Vashon Island, now known as WDFW Commercial Salmon Management and Catch Reporting Area 11.” Id. The Puyallup then immediately moved for a preliminary injunction. Id., Dkt. #4. In response to the motion, the Suquamish and the Swinomish Tribes agreed with the Puyallup that the Muckleshoot had no adjudicated U&A around the islands of Central and South Puget Sound, and argued that Judge Boldt's Finding of Fact 76 that Muckleshoot had U&A “secondarily in the saltwater of Puget Sound” was ambiguous and that Judge Boldt never intended to establish Muckleshoot U&A “in the saltwater, far from the upriver haunts of the Muckleshoot forbears.” Case No. 97-sp-00001RSM, Dkt. #22 at 2-8. See also id, Dkt. #24. The Puyallup then withdrew their motion.

         The Swinomish and Suquamish next filed a cross-request for determination seeking, like the Puyallup, a finding that Muckleshoot marine U&A was “very limited.” Id., Dkt. #30. Specifically, the Tribes asserted that the Muckleshoot had no adjudicated U&A “in Washington Marine Catch Reporting Area 10 or waters west and north of Area 10.” Id., Dkt. #36 at ¶ 1.

         On January 15, 1998, Muckleshoot filed a motion to dismiss the requests for determination, arguing that Judge Boldt had issued an unambiguous finding in his initial decision, and that the Requests for Determination (“RFD”) were barred by the doctrine of res judicata. Id., Dkt. #47 at 1. Further, Muckleshoot argued that the RFDs did not fall within this Court's continuing jurisdiction. Id. Muckleshoot “took issue” with the petitioners' arguments that there was ambiguity with Judge Boldt's term “Puget Sound” as applied to areas 11, 10, 10E, 9, 8 and 8A of Puget Sound. Id. at 2. Muckleshoot argued that the Court was limited in its authority to clarify Judge Boldt's findings, and that petitioners were merely seeking a redetermination of the term “Puget Sound” which was unambiguous as to the waters at issue. Id. at 2-17. Finally, Muckleshoot argued that the Court did not have continuing jurisdiction under Paragraph 25(a)(6) because the U&A had been specifically determined by Judge Boldt. Id. at 17. The Swinomish, Suquamish and Puyallup Tribes responded with a Motion for Summary Judgment, asserting that finding of fact 76 was ambiguous and that the Court had jurisdiction to clarify that Muckleshoot had no U&A beyond Elliot Bay. Dkt. #50.

         While those motions were pending, the Ninth Circuit Court of Appeals issued it decision in Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355 (1998) (Muckleshoot I). In that case, relevant to ...


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